Last week’s post reviewed what Title IX is and what makes it so controversial. It is one of those laws that seems to alienate both sides of a relevant legal argument. Now that the law is in the news on both the local and national level, it is the center of so much controversy again. This post will look at the two stories that have brought Title IX back into the news.
The National Title IX Story - Betsy DeVos:
Current Secretary of Education Betsy DeVos recently announced changes to the way that Title IX is enforced on college campuses after the Obama administration. In 2011, under President Obama, the Department of Education released a “Dear Colleague Letter.” This letter explained that sexual assaults, and the way they are adjudicated on college campuses, fell under the authority of Title IX.
This letter did not stop there, however. While colleges were given jurisdiction to internally handle sexual assault cases that took place on their own campuses, the “DCL” dictated that these cases should be decided using a standard known as “preponderance of evidence.” This standard says that the plaintiff/petitioner/complainant that proves its case by a "preponderance of the evidence" prevails.
This is a far cry from the usual standard required in our legal system. “Innocent until proven guilty”, "beyond a reasonable doubt", or even “clear and convincing” were replaced by “more probable than not”. This lessened the burden on accusers and placed a heavy burden on the accused, especially compared to what is required in a criminal trial.
Secretary DeVos has now changed that. To “give due process back to students,” she removed the standard set forth in the “DCL” as a requirement. Now, schools have the ability to choose a standard that falls somewhere between “a preponderance of the evidence” and “clear and convincing”.
Even though schools can stick with the Obama-era standard, critics of this change are upset because they also now have the ability to relax that standard. This places more of a burden on the accuser, but it also brings these types of cases settled on college campuses more in line with our country’s legal standards. It brings a level of fairness back to these types of hearings. After all, "victims" often have plenty of motivation to lie or mislead in order to get back at someone.
The Local Title IX Story - Liberty University:
In our region, a Title IX story is playing out that began under the Obama-era standards but will finish under the new standards recently announced by Betsy DeVos. Three football players – one in April and two more in the last month – have sued Liberty University. All three allege that their “Title IX rights were violated,” they were “defamed by the school,” and they were “denied due process”.
If you have carefully read so far, you might wonder how this is possible, since the Title IX standard was clearly skewed in the accuser’s favor. However, the details of this case require a deeper look.
The alleged sexual assault took place in August 2015; it was reported to authorities 11 months later. The university took three additional months before deciding to dismiss two of the players (one had already been dismissed). Despite the dismissal, the Commonwealth’s Attorney, Michael Doucette, decided that there was not sufficient evidence to pursue the alleged assault as a criminal case.
Last week, this blog mentioned that there have been many examples of sexual assault cases on college campuses over the past few years; the most public ones usually involve high-profile student-athletes. Many times, these young men found themselves in trouble with their colleges and universities but not with prosecutors, like with this case ongoing at Liberty.
Given the difference in the standards used to decide those cases, it is now easy to see why. Prosecutors do not use “a preponderance of the evidence” to make their decisions. Moving forward, colleges and universities do not have to either.
Allegations of sexual assault do not just occur among college students. This kind of case, whenever presented in court, requires a skilled and experienced defense attorney at your side. If this is your need, call or e-mail today for a free consultation!
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